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Click here for the full text of this decision FACTS:The state indicted Randolph R. Sparks for the offense of driving while intoxicated (DWI). Such an offense is a Class B misdemeanor unless it is shown that the offender has a previous conviction for a similar offense. A showing of one previous conviction enhances the offense to a Class A misdemeanor; two previous convictions enhance the offense to a felony of the third degree. At the time of Sparks’ offense on May 3, 2003, former �49.09(e) of the Texas Penal Code limited the use of many prior convictions for enhancement purposes after 10 years had elapsed. The indictment of Sparks alleged that the 2003 offense was a felony because of prior convictions for DWI that were entered on Aug. 17, 1979, and June 24, 1997. If Sparks had not been convicted of a relevant offense within 10 years after the punishment for the 1979 conviction was completed, �49.09(e) would have forbidden its use for enhancement of the 2003 offense to a felony. Even if it were enhanced by the 1997 conviction, the 2003 offense could have been no more than a Class A misdemeanor, for which the maximum punishment was one year in jail and a $4,000 fine. Sparks pleaded guilty as charged, judicially confessed and agreed to the stipulation of evidence. The indictment also alleged that he had been convicted of the felony offense of aggravated assault, which enhanced the punishment for a felony DWI to that of a second-degree felony. He received a sentence of eight years in prison. He did not appeal. HOLDING:The judgment of the trial court is reversed, and appellant is remanded to the custody of the sheriff of Denton County for proceedings in the district court consistent with this opinion, which may include his admission to bail. The court stated that on appeal, an appellant may challenge whether the record contains evidence that was legally sufficient to meet the prosecution’s burden to prove guilt beyond a reasonable doubt. The court first cited its holding in Smith v. State, 158 S.W.3d 463 (Tex. Cr. App. 2005), that a defendant may not agree at trial to excuse the state from introducing evidence to meet that burden, and then claim on appeal that the record does not show that the state introduced evidence to meet the burden. In contrast, the court stated that on habeas corpus, the burden is on the applicant. When an applicant who has been convicted claims that he is actually innocent, and he proves it, he will be relieved from the restraint of the conviction even though he may have pleaded guilty and confessed. In this habeas proceeding, the court found that Sparks proved, and the state did not dispute, the fact that Sparks’ DWI offense was not a felony. OPINION:Womack, J.

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